There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of "preventative detention" almost immediately upon taking office on January 20, 2009. Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees,...
I have no idea what you people are talking about. Congress has no intention of standing on the sidelines while the Supreme Court micromanages Guantanamo Bay, as Rep. Lewis Gohmert (R-Tex)'s new H.R. 6615 proves beyond even the smallest shadow of a doubt. Here is the title: To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba...
There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone's indulgence to bunch posts and arguments together. If I'm skipping over important points in doing so, just call me on it and I'll try to circle back. Let me start with...
Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government's capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a...
I suspect that, thanks to Roger's framing and Marty's and Deborah's thoughtful opening salvos, we're not too far from getting to the two big questions with regard to Ben's proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to...
A brief attempt to frame the questions for Ben and others on the issue of preventive detention: I think Deborah is absolutely right to insist upon distinguishing the GTMO problem from everything else. Most of the GTMO detainees have been incarcerated for more than six years. Finally, they are receiving a serious opportunity to contest their detentions in the...
Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats. The Israeli...
Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less...
Before we move on to the specific questions of detention and interrogation, I'm curious about Ben's, and others', reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our "very different assessments of the terrorist threat." (Orin has now...
Thanks to Chris for inviting me to participate in this great "roundtable." It has been wonderful to read the myriad perspective already. Ben's book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate...
We've not said as much as we might about the role of the "war" model in the war on terrorism. And so, before we move on to more specific topics tomorrow, I'd like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest. Discussion of the war in Afghanistan...
Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that "I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." I was reminded...
